Between independence and subservience

Joel Rocamora
The Supreme Court has to accept that it is, after all, only a court, not a final arbiter of what happens in the government and even the economy. In the end, the honorable justices need to regain a modicum of modesty.

At some point, hopefully soon, the Supreme Court will decide on the Aquino administration’s motion for reconsideration on the Court’s ruling on the DAP. We cannot enter into the specifics of the case without being accused of being sub judice. Whatever the Court’s decision will be, there are looming potentially problematical issues.

The 2015 General Appropriations Act, now passed by the House, contains a definition of savings which goes against that of the Court in its DAP decision. If the Court insists on its definition, what then?

While intervening in the domain of the Executive and the Legislative branches with consequences akin to that of a bull charging into a china shop, the Court has been aggressively asserting its independence. It has criticized the DBM for limiting the increase in its budget for FY2015. It has refused to release details of the Judiciary Development Fund (JDF) to Congress, with one justice even asserting that Congress does not have the power to amend the law creating the fund. The Court has also refused to release the justices’ Statements of Assets Liabilities & Net Worth (SALNs) to the Bureau of Internal Revenue (BIR).

There are issues of democratic practice embedded in the SC’s power of judicial review which cannot remain within the necessarily secretive confines of court deliberation. The SC can rule that the Executive, together with the Legislative, or separately, are guilty of “grave abuse of discretion.” What recourse is available to the Executive and Legislative branches when the SC is guilty of “grave abuse of discretion”? Under the Constitution, and Philippine jurisprudence, none. 

Even only in the recent past, there have been SC decisions which have arguably breached the limits of “discretion.” In 3 decisions involving the rights and power of former President Gloria Macapagal Arroyo, the SC either directly violated the law or stretched the limits of its power. These included allowing the appointment of Renato Corona as Chief Justice at a time when Arroyo was already explicitly prohibited from doing so; preventing the new administration from creating a Truth Commission; and most egregiously, a TRO on a GMA hold departure order which would have allowed Arroyo to leave the country and escape prosecution. 

One key principle of democractic practice is “check and balance” between the 3 branches of government. It may be perfectly valid for the Supreme Court to have the power to “check” the other branches, but if neither the legislature nor the Executive has the power to “check” the Supreme Court, there is no “balance.” The only powers available to the Executive and Legislative branches against the SC are “disruptive.”  Cutting the budget of the Supreme Court or worse, impeaching the justices, cannot be organized into the “normal course of [political] events.” How did this come to pass?

The 1987 Constitution was written in the immediate aftermath of the Marcos dictatorship. It is only natural that the main thrust of the anti-dictatorship movement – preventing a dictatorship – was the main determinant. One provision, limiting the power of the president to declare martial law and the suspension of the writ of habeas corpus has found general acceptance. It is the other provision, giving the SC power to review acts of the legislature and the Executive, which has been problematical. 

In his article, “Guarding the Guardians: Addressing the Post-1987 Imbalance of Presidential Power and Judicial Review” that appeared in the Philippine Law Journal, Oscar Franklin Tan said that under the 1987 Constitution, “judicial review has been made explicit and is not a mere product of jurisprudence. Second, it is not limited to determining whether the Constitution has been breached; the Court is further empowered ‘to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government’ even where a branch of government has acted within its power. Third, judicial review is denominated as a duty, a word that the Court cites emphatically when it is determined to rule on an issue.”

The Court has actually expanded its judicial review powers beyond that provided in the 1987 Constitution. The Court has to rule on actual cases, but rules on procedure have been steadily liberalized to open up even more territory to the Court. One rule is that a petitioner has to have “standing.”

“A person has standing to challenge the governmental act only if he has a ‘personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement,'” constitutionalist Fr Joaquin G. Bernas wrote in The 1987 Constitution of the Republic of the Philippines: A Commentary. The Court has reinterpreted this rule to include cases where petitioners have suffered no direct, personal injury, allowing direct public interest suits. Another rule, on the appropriate timing of a suit, the “ripeness” and “mootness” rule has been set aside by the Court on important public policy issues.

It is important to understand that these procedural rules are not mere technicalities. They go to the heart of the nature of judicial power, what makes the Supreme Court a court.

In a Memorandum for the Respondents in the DAP case, collaborating counsel Vicente V. Mendoza said, “It is the controversy arising from the conflicting claims of parties, not the conflict in the interpretation of the Constitution, that is meant by ‘a case or controversy’ justifying a court in determining the constitutional question because it is necessary to the decision of the parties’ claims.” 

Unexpected consequences

During the martial law period, a subservient Supreme Court provided judicial cover to Marcos’ convoluted legal formulations for justifying his dictatorial powers. Apart from the inexcusably lame ruling on the ratification of the 1973 Constitution – it’s legal because it is already in force – the Court avoided controversial issues through the simple expedient of saying the questioned act is a “political question.” The 1987 Constitution makes it difficult for the Court to avoid ruling on controversial issues by making it a “duty.” The intent of these provisions – providing a legal brace for the spine of the Court – has worked altogether too well.  

The whole point of the “political question” doctrine is that there are issues which are matters of policy, not law. But the “political question” doctrine has been in effect removed in the 1987 Constitution and in the practice of the court in the past quarter century. Without this doctrine, you remove “separation of powers,” an indispensable part of democratic practice. You have an independent Supreme Court, but a dependent Executive and Legislative branch, whose actions are subject to the disapproval of the Court.

Still another area where the Court has expanded its powers is its assertion of its rule-making powers. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. Given the extensiveness of the 1987 Constitution’s provisions on social and political rights, the scope for extending the Court’s power is almost limitless. This power was most extensively used during the Puno court. 

“Chief Justice Puno primarily deployed the rulemaking power to create the writ of amparo, principally to address extrajudicial killings as documented in the landmark decision Secretary of National Defense v. Manalo. The Puno Court also issued rules regarding the writs of habeas data and kalikasan, to protect the rights to informational privacy and to a healthful environment,” Tan said in his article. Even as it has established precedents, this power has not been asserted much since the retirement of Chief Justice Puno.

While these judicial extensions of constitutional rights are, by and large, welcome, some decisions are problematical. The Oposa decision, for example, upheld a constitutional “right to a balanced and healthful ecology” as well as the standing of unborn generations “based on the concept of intergenerational responsibility.” Tecson v. Glaxo Wellcome Philippines Inc recognized a constitutional “right to reasonable returns on investments and to expansion and growth.” Other constitutional provisions have been interpreted to authorize the prohibition of monopolies that are against the public interest and a “Filipino First Policy” that allowed a Filipino bidder to match the offer of a foreign company. (Tan)

The extensiveness of these definitions of rights opens the Court to future controversy. How does one determine legally the interests of “unborn generations”? Even more problematical is the Court’s foray into private contracts. Providing judicial standing to a “Filipino First Policy” prohibiting monopolies without legislative definitions of what constitutes monopoly, and most difficult, the “right to reasonable returns on investments and to expansion and growth” are judicial formulations that are extremely difficult to implement in actual cases. This extension of judicial review into the economic sphere makes it difficult to fulfill a condition of our participation in a globalized international economy, the sanctity of contracts, and the stability and reliability of rules governing economic life.

Judicial review is not a black and white issue even if in its current manifestation in the DAP case it generates a lot of strong opinions. When they introduced limits on Executive power and extended that of the judiciary, the framers of the 1987 Constitution had good intentions based on lessons from the martial law period. But good intentions sometimes result in unwelcome outcomes; reforms can generate unintended consequences. The challenge today, 27 years after the drafting of the 1987 Constitution, is to achieve synthesis. 

As things stand, the only obstacle that stands in the way of what the President calls “judicial overreach” is “judicial self-restraint.” In almost 3 decades, there has been precious little of that. The boundaries of “self-restraint” have been breached to advance social and political rights but also sectarian political interests. To identify institutional tools for assisting “self-restraint,” we have to start with the recognition that the justices of the Court are political.  

SC justices are real people, subject to the same drives and temptations as the rest of us. It was Justice Brion, in a decision on the recent Ong case who said: “…we all know that bribery is happening in our midst. The media hints at it; law practitioners talk about it and do not even do so in whispers; clients accept it as a fact of litigation and readily accept their counsels’ claim for extra expense – ‘para kay judge or para kay fiscal (for the judge or for the fiscal).” 

We cannot rely on the “self-restraint” of justices. Whether it was to provide legal cover for the Marcos dictatorship or to prevent GMA from being made accountable for her many crimes, the Court has ruled in service to partisan political interests. The whole point of “checks and balances” is to locate the boundaries of each branch’s action where the action of another branch begins. In the current set-up, there is no “check” on the action of the Court. “Balance” cannot be achieved without conflict.

Because the problems begin with legal construction in the 1987 Constitution, the Constitution at some point has to be amended, a task for lawyers. But legal theory has to begin with a few basic political facts:

  • Court justices are not elected, once appointed they cannot be removed except through impeachment or retirement at age 70. They cannot, in other words, be made accountable for their decisions. 
  • The Court has limited resources for determining the facts of a case on appeal, it leaves that to lower courts. To rule on a government policy where the data requirements are a quantum leap from a case at court, the Court has to rely on the other branches. 
  • The Court cannot implement its decisions; it has to count on the Executive and Legislative branches. 

These are the practical considerations behind the need for inter-branch cooperation even as there is “independence” and “separation of powers.”

The boundaries between branches of government have to be reestablished. Since I am not a lawyer, I do not know what kind of legal construction is required in a constitutional amendment process. Short of that, the Court itself has to accept that it is after all only a court, not a final arbiter of what happens in the government and even the economy. It has to revisit the rules on procedure that keeps it a court. Most importantly, it has to restore the “political question” boundary which prevents it from entering into areas of policy that it has no competence in. In the end, the honorable justices of the Supreme Court have to regain a modicum of modesty. – 

Joel Rocamora heads the National Anti-Poverty Commission

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